Sunday, October 17, 2021

Attorney General concedes that PS cannot delegate powers to suspend

Having resisted a straightforward legal point for over a year, the government has finally capitulated at the doorstep of the High Court. The capitulation means that the unlawful contents of a now three-year old savingram that was authored by the Permanent Secretary in the Ministry of Local Government and Rural Development will be withdrawn.

The point of contention was whether permanent secretaries can delegate powers to suspend civil servants and was based on a case relating to two Kweneng District Council employees, Gosiame Monnawatsie, a Commercial Affairs Officer and Motsei Moutswi, a Physical Planner. The pair was suspended over alleged criminal wrongdoing whose details are still sketchy. The Senior Assistant Council Secretary, Milton Keitshokile, suspended both on the understanding that powers to suspend were delegable in terms of Section 35 of the Public Service Act. Sub-section 1 of the provision in question reads: “If the supervising officer becomes aware that criminal proceedings have been or are about to be instituted against an employee, or considers that disciplinary proceedings should be instituted against a public officer, and is of the opinion that such officer should be suspended from the performance of his or her duties pending the taking of proceedings against him or her, the supervising officer shall report the matter in writing to the Permanent Secretary recommending the suspension of such employee.” On receipt of a report under the latter, Sub-section 2 says that the Permanent Secretary shall decide whether the employee should be suspended.

Keitshokile had sought to justify his actions by invoking a two-year old savingram from the Permanent Secretary’s office titled “Delegation of Functions to Heads of Departments within the Ministry of Local Government and Rural Development.” In terms of that savingram, the position of Senior Assistant Council Secretary is mentioned among Heads of Sub District Councils to whom powers to appoint, discipline and promote have been delegated. Monnawatsie and Moutswi contested this delegation of authority through their lawyer, Tiroyaone Ezekiel, by factoring in another provision of the same statute.

Section 16 of the Public Service Act gives detailed guidance on the delegation of powers. This provision empowers the Permanent Secretary to the President to delegate his powers to the Director or any other Permanent Secretary. Such delegation is to be made with the consent of the president and in writing. The provision adds that “A power or function delegated under this Part may, if the instrument of delegation so provides, be further delegated.” In an affidavit that he had affidavit deposed to, Monnawatsie argued that “the Permanent Secretary cannot delegate authority or suspend (as empowered by Section 35) under Section 16.”

With the parties failing to find common ground, the Lobatse High Court was to adjudicate on the matter but when that was to happen, the Attorney General conceded all the points that the applicants had made. The result was a settlement agreement (in which Ezekiel represented her clients and Grenorrah Begane represented the Attorney General) that ÔÇô with Justice Tebogo Tau’s seal of approval – has been transformed into a court order. In terms of the order, the state concedes that the Senior Assistant Council Secretary didn’t have the powers to suspend the applicants from work; that the suspension shall be set aside; that the Attorney General shall write a legal opinion on the matter and advise the central government on Section 35 of the Public Service Act; and that the Attorney General shall pay costs of the application.

Now flush with cash from member subscriptions and a host of capitalist ventures, public sector unions have become a thorn in the side of the government. Monnawatsie and Moutswi challenged the government through the Botswana Land Board Local Authorities and Health Workers Union ÔÇô BLLAHWU as it is more commonly known.

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